Thursday, March 29, 2007

Knowledge of Jurisdictional Hook Not Necessary for CWA Conviction

US v. Cooper: Cooper was convicted on 9 counts of violating the Clean Water Act by knowingly discharging a pollutant into the waters of the United States. Cooper ran a trailer park that included a "sewage lagoon" which discharged into a nearby creek. The creek flowed, eventually, into the Roanoke River and into Albemarle Sound. While the discharge from the "lagoon" was treated in some way, but not effectively enough to meet Virginia regulatory requirements. Cooper and the Virginia equivalent of DEP went back and forth for years to resolve the situation. Finally, after Cooper failed to meet the terms of a consent agreement between the parties, DEP revoked his permit to operate the "lagoon." Undaunted, Cooper continued to use the "lagoon" and was eventually charged federally. He received a sentence of 27 months in prison.

On appeal, Cooper made two main arguments, both of which were rejected by the Fourth Circuit. First, Cooper argued that evidence of his dealings with the Virginia DEP - all of which occurred prior to the conduct charged in the federal indictment - was improperly admitted under FRE 404(b). The court concluded that FRE 404(b) was not even implicated in Cooper's case because the evidence was "intrinsic to the story of the crime." In any event, if it was 404(b) evidence it was properly admitted to show knowledge/lack of mistake on Cooper's part. Second, Cooper argued that the Government failed to prove that he knew the creek into which the "lagoon" drained was a "water of the United States" and therefore the Government failed to prove an element of the offense. The court rejected that argument, concluding that the "waters of the United States" element is purely jurisdictional and the defendant need not have knowledge of what makes the offense a federal one (in the same way that a felon in possession of a firearm doesn't need to know it travelled in interstate commerce).

Friday, March 16, 2007

Seach Supported by Evidence Obtained by Third Party

US v. Seldon: Seldon owned a Mazda MPV minivan, which he had modified to include two secret compartments to smuggle drugs. One compartment was in the gas tank. He took the MPV to a local dealership because it was "hard starting" and cutting off after starting. Given the problems, mechanics examined the fuel pump which, in a Mazda MPV, is located in the gas tank. In the course of their diagnosis, the mechanics found the secret compartment in the gas tank, as well as another one, and alerted local police. An officer went to the dealership, observed the compartments, and got information on who brought the minivan in for service. He knew that Seldon was known to local authorities as a major drug dealer. The officer did not pursue the investigation any further at that time.

As it would happen, the same officer pulled Seldon over for speeding in the minivan nine months later. During the stop, the officer noticed various indicia of narcotics trafficking (excessive use of air fresheners, large amounts of cash, Seldon's nervousness) and made the connection with the secret compartments discovered months earlier. The officer searched the minivan and found 500 grams of cocain and 850 grams of marijuana. Seldon was charged with conspiracy to distribute drugs and illegal monetary transactions. He moved to suppress the drugs found in the minivan, arguing that the officer lacked probable cause for the search incident to the traffic stop and that the initial examination at the dealership was also unconstitutional. The district court denied the motion and Seldon pleaded guilty to the charges.

On appeal, the Fourth Circuit affirmed. It rejected Seldon's argument that the initial search at the Mazda dealership violated the Fourth Amendment because the information was revealed by searches conducted by the mechanics prior to the involvement of the police, even if the officer's subsequent examination of the minivan was unlawful. With that information, along with the facts developed during the traffic stop, there was probable cause to search Seldon's vehicle.

Wednesday, March 14, 2007

Details & Emergency Justify Terry Stop Based on Anonymous Tip

US v. Elston: Police in Roanoke, VA, received a 911 call from a woman reporting that a man named "Jimmy" (Elston) had just left her home in his truck and was intoxicated. In addition, he had a handgun with ammunition and threatened to "let[] them off in somebody." The caller provided a detailed description of both Elston and his truck. The woman identified herself, but asked the 911 operator not to pass along her name to police and the operator complied (although the caller is identified in the opinion). Officers located Elston and stopped the truck. After Elston was removed from his truck and handcuffed on the ground, an officer saw a pistol in the truck. Elston was arrested for being a felon in possession of a firearm. He filed a motion to suppress the gun, on the ground that the 911 call was an anonymous tip that was not sufficiently corroborated to support a Terry stop. In the alternative, he argued that what happened wasn't really a Terry stop, but rather a full-fledged arrest, which the officers lacked probable cause to initiate. The district court denied the motion and Elston entered a conditional plea.

On appeal, the Fourth Circuit affirmed the district court's rejection of Elston's suppression arguments. First, the court, assuming without deciding that the 911 call was "anonymous," held that the information provided by the caller was sufficiently detailed to support reasonable suspicion, as she "provided a wealth of detail about Elston's appearance, vehicle, weapon, behavior, and state of mind." In addition, the report that Elston was armed and might use his weapon added an element of emergency to the situation not found in prior anonymous tip cases. Second, the court held that the police officers actions in getting Elston out of his truck and handcuffed on the ground did not constitute an arrest and that the encounter was a Terry stop supported by reasonable suspicion. Finally, the court upheld the discovery of the gun in the truck as incident to a protective sweep of the vehicle.

Tuesday, March 13, 2007

Two-Year Misdemeanor is "Felony Drug Offense"

US v. Burgess: Burgess was convicted of conspiring to distribute more than 50 grams of cocaine base. The Government filed an 851 information to enhanced the mandatory minimum based on Burgess's prior South Carolina conviction for possession of cocaine. For that conviction, a misdemeanor under state law, Burgess received a one-year sentence. The statutory maximum for the offense, however, was two years. Burgess objected, arguing that the definition of "felony drug offense" in 21 USC 802(44), which ties the definition to sentence length regardless of state law classification, must be read in common with the definition of "felony" in 21 USC 802(13), which ties the definition to state law. The district court rejected Burgess's argument and sentenced him to 156 months in prison (following a downward departure for substantial assistance).

Burgess's counsel filed an Anders brief, but the court nonetheless took the case for oral argument. The court upheld Burgess's sentence and rejected his argument regarding the meaning of "felony drug offense." The definition of that term in section 802(44) is unambiguous and has nothing to do with the general definition of "felony" in section 802(13). The court did note that, after Burgess's sentencing, two other Circuits had split on the issue, the First Circuit (US v. Roberson, 459 F.3d 39 [1st Cir. 2006] - adopting Fourth Circuit position) and DC Circuit (US v. West, 393 F.3d 1302 [DC Cir. 2005] - adopting Burgess's argument and applying Rule of Lenity).

Thursday, March 08, 2007

18-month Probation Revocation Sentence Not Plainly Unreasonable

US v. Moulden: Moulden was on probation after pleading guilty to conspiracy to commit bank fraud and repeatedly violated the terms of his probation. The violations were mostly minor - failed drug screens, failure to pay restitution, etc. - and the district court did not revoke Moulden's probation the first two times his violations were brought before the court. The court did extend his term of supervision, however, with Moulden's consent. Finally, Moulden's probation officer filed a petition seeking revocation of Moulden's probation for multiple violations relating to drug use, treatment, restitution, and maintaining contact with his probation officer. Moulden admitted the violations and the district court revoked his probation. The sentencing range suggested in the policy statements in Chapter 7 of the Guidelines was three to nine months. The district court imposed a sentence of 18 months.

On appeal, Moulden argued that his sentence was excessive. The Fourth Circuit rejected that argument and upheld the sentence. Along the way, it clarified the standard of review in probation revocation appeals. Moulden argued that the proper standard for reviewing his sentence was the post-Booker reasonableness standard. However, the Government argued, and the Fourth Circuit agreed, that the proper standard was the same one employed in supervised release cases - plainly unreasonable. With that question settled, the Fourth concluded that Moulden's sentence was not plainly unreasonable given his history of probation violations and the district court's prior leniency in dealing with them.

Tuesday, March 06, 2007

No Allocution = Plain Error in Booker Remand

US v. Muhammad: Muhammad was convicted of wire fraud and money laundering and setenced to the Guideline maximum 121 months in prison. While on appeal, the Supreme Court decided Booker and Muhammad's case remanded to the district court for resentencing. At resentencing, while Muhammad's counsel was able to make arguments with regards to a new sentence, the district court never directly addressed Muhammad and allowed him to allocute. The district court imposed the same 121 month sentence.

On appeal, the Fourth Circuit vacates Muhammad's sentence for a second time. The court holds that the district court erred by failing to allow Muhammad to allocute, that the error was plain, and that it prejudiced his substantial rights. The court went on to notice the error and vacate Muhammad's sentence. In doing so, the court rejected arguments by the Government (which admitted the error and that it was plain) that Muhammad suffered no prejudice because he fully allocuted at the original sentencing and the district court's top-of-the-Guidelines sentence doesn't support an inference that the district court would have imposed a lesser sentence regardless of what Muhammad said during his allocution.

Congrats to the Raleigh, NC FPD Office on the win!

Thursday, March 01, 2007

Sentences Taintied by Perjury and Government Misconduct Upheld

US v. Dyess: Calvin Dyess ("Calvin"), Eric Spencer, and Orange Dyess ("Orange") all pleaded guilty to various offenses related to a large drug conspiracy in Charleston, West Virginia. At sentencing, the district court heard from numerous witnesses, including co-defendant Ursala Rader, Calvin's ex-wife. Rader provided testimony about the extent of the drug conspiracy and Calvin's involvement in it. Calvin received a term of life imprisonment, Spencer a term of 262 months, and Orange a term of 235 months.

While the case was on appeal to the Fourth Circuit (10 days before oral argument, as a matter of fact), the Government disclosed that Rader had been involved in a sexual relationship with William Hart, a police officer investigating the case, The affair began after the initial indictment in the case and continued through sentencing. As part of the relationship, Hart had allowed Rader to retain more than $20,000 in drug proceeds that should have been turned over to investigators. Further investigation showed that Rader, with Hart's help, had perjured herself at the sentencing hearing. The case was remanded to the district court for further proceedings.

Calvin, Spencer, and Orange filed motions asking for an evidentiary hearing regarding Hart & Rader's conduct, dismissal of the indictment due to outrageous Government conduct, withdrawal of their guilty pleas, and resentencing. Prior to the district court holding a hearing, Calvin sought to have three other co-defendants who testified against him at the original sentencing hearing to file affidavits indicating that they, too, had perjured themselves. One of those witnesses refused and reported the scheme to his probation officer.

After holding a hearing, the district court (a different judge from the original sentencing) concluded that Rader's testimony was unreliable and should be disregarded. However, the other testimony at sentencing was sufficient to sustain the Guideline calculations made at that hearing. Therefore, the district court denied any other relief, including resentencing. The district court noted that, if it did resentence Calvin, Spencer, and Orange in the post-Booker advisory Guideline system it would impose the same sentences again.

On appeal, the Fourth Circuit affirmed both the convictions and sentences (2-1) of the defendants.

First, the defendants argued that the indictments against them should be dismissed due to outrageous Government conduct. The court rejected that argument, affirming the district court's conclusion that Hart's motivations in becoming involved with Rader were personal in nature, not professional, and not part of a Government plan to aid the prosecution. In addition, the court held that dismissal was not required when the relationship at issue occurred after the events covered by the indictment took place.

Second, Calvin and Orange argued that they should have been allowed to withdraw their guilty pleas due to ineffective assistance of counsel for allowing them to plead guilty to an offense with a possible life sentence (Calvin) and when he did not understand the elements of the offense (Orange). The court rejected those arguments as well.

Third, all three defendants argued that their sentencing violated Booker because their sentences were increased based on judicially found facts. The court rejected this argument, holding that while the initial sentencing in 1999 would have violated Booker, and harm was obliterated when the district court on remand said that it would resentence the defendants to the same sentences under a post-Booker system.

Fourth, the defendants argued that their sentences were not supported by sufficient evidence, a claim the court rejected based on the district court's findings that there was sufficient evidence outside of Rader's perjurious testimony to support the original sentences.

Finally, Calvin argued that the district court failed to properly group his drug and money laundering convictions under the Guidelines. The court rejected that argument, largely because both parties appeared to concede that the drug sentence was so high (life in prison) that the failure to group was harmless.

Judge Gregory dissented from the court's holding on the sentencing issues. Gregory argued that the district court's proceedings on remand were insufficient to provide both the new district court judge and the appellate court a sufficient record from which it could determine whether the sentences imposed violated Booker or were unreasonable.